SIMEZA Sangwa and Associates have submitted that an appointment of
either the Supreme Court or High Court judge under Article 98 (1) requires
ratification by the National Assembly. This is in a matter where Simeza Sangwa
and Associates have petitioned the
High Court to order Chief Justice Ernest Sakala and justice Peter Chitengi
to vacate their offices.

According to a petition filed on behalf of their
clients Faustin Kabwe and Aaron Chungu in the Lusaka High Court, Simeza Sangwa
and Associates are praying to the court to grant them an order restraining
justice Sakala and justice Chitengi from occupying and performing their
functions until after the hearing and determination of the
petition.

Kabwe and Chungu are the first and second respondents while
justice Sakala, justice Chitengi and Attorney General Mumba Malila are the
first, second and third respondents respectively.

The petitioners stated
that justice Sakala is a judicial officer who had passed the constitutional
retirement age of 65 years, but that he had continued to hold and perform the
functions of the office of Chief Justice.

They stated that justice
Chitengi was also a judicial officer who had passed the constitutional
retirement of 65 years but had continued to hold and perform the functions of a
judge of the Supreme Court.

In their submissions ahead of a ruling to be
passed by High Court judge Munalula Lisimba on September 14, 2009, the
petitioners submitted that if not ratified by the National Assembly, the
appointments do not empower the appointed persons to assume the judicial office
and that if they were to do so, the assumption of the office is null and
void.

"After reaching the age of 65, the President may permit a judge to
continue in office for a period determined by the President," they submitted. "
The purpose of this extension is clear - to enable him deliver judgments or do
any other thing in relation to the proceedings that were commenced before him
before he attained the age of 65. In other words, to finish the work that he
started when he still had the mandate. A judge in this position cannot take new
cases because his mandate has expired."

Simeza Sangwa and Associates also
submitted that the President alone could not confer judicial authority on any
person.

They stated that the President's responsibility was to appoint or
designate a person and that it was the responsibility of the National Assembly
to either ratify or reject the appointment.

"The provision refers to any
judge of the Supreme Court, without exception. If any person is to assume the
office of judge of the Supreme Court, he has to be appointed by the President,
but his appointment is subject to ratification by the National Assembly," the
petitioners submitted. "It does not make a distinction whether one is occupying
the office for his first or second term. It refers to all appointments of judges
of the Supreme Court."

The petitioners further submitted that for any
appointments to the office of judge of the Supreme Court to be effective,
whether it was the first or second appointment, ratification by the National
Assembly was mandatory.

They explained that the ratification of such
appointments was demanded by the people in order to secure the independence of
the Judiciary.

The petitioners submitted that a judge accepted by the
National Assembly would not owe allegiance to the President or the National
Assembly but to the Constitution and the law as stipulated in Article
91(2).

"Ratification by the National Assembly is the only way of ensuring
that the person appointed judge is suitable for the job," they stated. "It is
even more critical in relation to appointments under Article 98(1) (b). There
must be good reasons why a judge who has already served his country up to the
age of 65 and who is entitled to receive 80 per cent of all the benefits of a
serving judge for the rest of his life would want to continue in office under
Article 98(1) (b)."

Simeza Sangwa and Associates argued that the
appointment of a judge under Article 98 (1)(b) should not be an affair between
the judge concerned and the President.

They have also submitted that to
hold that ratification is not required would undermine transparency,
accountability and good governance in the appointment of judges, the ideals the
Constitution was drafted to achieve.

The petitioners submitted that an
appointment by the President under Article 98(1)(b) was not enough to cause
someone to assume the office of judge of the Supreme Court or High
Court.

They stated that the approval of the appointment by the National
Assembly was a constitutional requirement under Article 93(2) of the
Constitution for any judge to assume the office under Article
98(1)(b).

They added that there was no doubt that the finding of the
court in favour of the petitioners and granting of the remedies sought will have
repercussions.

Simeza Sangwa and Associates said the action taken was not
only unprecedented but designed to cause a constitutional crisis, saying it was
contrary in every conceivable way to public interest.